Kantor Center for the Study of Contemporary European Jewry

Portugal

The following law excerpts appear in the publication "Legislating for Equality, A Multinational Collection of Non-Discrimination Norms. Vol. I: Europe":

1. CONSTITUTIONAL PROVISIONS

Hereinafter are the relevant provisions of the Constitution of Portugal of 2 April 1976, as amended up to 2005.[1] 

Article 13 - Principle of equality

"1. Every citizen shall possess the same social dignity and shall be equal before the law.

2. No one shall be privileged, favoured, prejudiced, deprived of any right or exempted from any duty on the basis of ancestry, sex, race, language, place of origin, religion, political or ideological beliefs, education, economic situation, social circumstances or sexual orientation." 

Article 16 - Scope and interpretation of fundamental rights

"1. The fundamental rights enshrined in this Constitution shall not exclude such other rights as may be laid down by law and in the applicable rules of international law.

2. The provisions of this Constitution and of laws concerning fundamental rights shall be interpreted and construed in accordance with the Universal Declaration of Human Rights."

Article 18 - Legal force

"1. This Constitution’s provisions with regard to rights, freedoms and guarantees shall be directly applicable to and binding on public and private persons and bodies.

2. The law may only restrict rights, freedoms and guarantees in cases expressly provided for in this Constitution, and such restrictions shall be limited to those needed to safeguard other rights and interests protected by this Constitution.

3. Laws that restrict rights, freedoms and guarantees shall possess an abstract and general nature and shall not possess a retroactive effect or reduce the extent or scope of the essential content of the provisions of this Constitution."

Article 23 - Ombudsman

"1. Citizens may submit complaints against actions or omissions by the public authorities to the Ombudsman, who shall assess them without the power to take decisions and shall send the competent entities and organs the recommendations needed to prevent or make good any injustices.

2. The Ombudsman’s work is independent of any non-judicial or judicial remedies provided for in the Constitution or the law.

3. The Ombudsman is an independent entity and the Assembly of the Republic shall appoint him for the period laid down by law.

4. The entities, organs and agents of the Public Administration shall cooperate with the Ombudsman in the fulfillment of his mission."

Article 37 - Freedom of expression and information

"1. Everyone shall possess the right to freely express and publicise his thoughts in words, images or by any other means, as well as the right to inform others, inform himself and be informed without hindrance or discrimination.

2. Exercise of the said rights shall not be hindered or limited by any type or form of censorship.

3. Infractions committed in the exercise of the said rights shall be subject to the general principles of the criminal law or the law governing administrative offences, and shall be brought before the courts of law or an independent administrative body respectively, as laid down by law.

4. Every person and body corporate shall be equally and effectively guaranteed the right of reply and to make corrections, as well as the right to compensation for damages suffered."

Article 41 - Freedom of conscience, religion and worship

"1. Freedom of conscience, religion and worship shall be inviolable.

2. No one shall be persecuted, deprived of rights or exempted from civic obligations or duties because of his convictions or religious observance.

3. No authority shall question anyone in relation to his convictions or religious

observance, save in order to gather statistical data that cannot be individually identified, nor shall anyone be prejudiced in any way for refusing to answer.

4. Churches and other religious communities shall be separate from the state and free to organise themselves and to perform their ceremonies and their worship.

5. Freedom to teach any religion within the denomination in question and to use appropriate media for the pursuit of its activities shall be guaranteed.

6. The right to be a conscientious objector, as laid down by law, shall be guaranteed."

Article 45 - Right to meet and to demonstrate

"1. Citizens shall possess the right to meet peacefully and without arms, even in places that are open to the public, without the need for any authorisation.

2. The right of every citizen to demonstrate shall be recognised."

Article 46 - Freedom of association

"1. Citizens shall possess the right to freely associate with one another without requiring any authorisation, on condition that such associations are not intended to promote violence and their purposes are not contrary to the criminal law.

2. Associations shall pursue their purposes freely and without interference from the public authorities and shall not be dissolved by the state or have their activities suspended, except in such cases as the law may provide for and then only by judicial order.

3. No one shall be obliged to belong to an association, or be coerced to remain therein by any means.

4. Armed associations, military, militarised or paramilitary-type associations and organisations that are racist or display a fascist ideology shall not be permitted."

Article 51 - Political associations and parties

"1. Freedom of association shall include the right to form or take part in political associations and parties and through them to work jointly and democratically towards the formation of the popular will and the organisation of political power.

2. No one shall be simultaneously registered as a member of more than one political party, and no one shall be deprived of the exercise of any right because he is or ceases to be registered as a member of any legally constituted party.

3. Without prejudice to the philosophy or ideology that underlies their manifestoes, political parties shall not employ names that contain expressions which are directly related to any religion or church, or emblems that can be confused with national or religious symbols.

4. No party shall be formed with a name or manifesto that possesses a regional nature or scope.

5. Political parties shall be governed by the principles of transparency, democratic organisation and management, and participation by all their members."

2.    HUMAN RIGHTS RELATED LEGISLATION

LAW ON FASCIST ORGANIZATIONS OF 6 OCTOBER 1978[2]

Article 1

"Organizations that adhere to fascist ideology are forbidden. "

Article 3

"1. For the purposes of this law, organisations shall be deemed fascist if by their statutes, their manifestos and communiqués, the statements of their leaders or those in charge of them, or by their deeds; show to adopt, defend, intention to spread or actual dissemination of the values, principles, persons, institutions or methods that have characterised fascist, as throughout history. Specifically, bellicism, violent political struggle, colonialism, racism, corporatism, or the idealisation of persons most related to those regimes.

2. Organisations that use anti-democratic means or violence against constitutional order, democratic institutions and the symbols of sovereignty, are specifically considered as adherent to fascist ideology, as well as those that adhere to or spread ideas or adopt ways of fight against national unity."

3.   PENAL CODE PROVISIONS

CRIMINAL CODE OF 1982, AS AMENDED UP TO 26 JUNE 2008[3]

Article 132 – Grave homicide[4]

"1. Whosoever commits homicide under reprehensible circumstances shall be punished with imprisonment for a period of 12 to 25 years.

2. the following circumstances shall considered reprehensible or perverse:

a) -d) (…).

e) racial, religious or political hate.

f)-l) (…)."

Article 239 – Genocide[5]

1. "Whoever, with the intention to destroy wholly or in part, any national, ethnic, racial or religious group as such, commits any of the following:

a) Assassination of members of the group;

b) Grave offense to the physical integrity of members of the group;

c) Subjection of the group to living conditions or to cruel, degrading or inhuman treatments, capable of provoking its total or partial destruction;

d) Transfer, by violent means, of children from within the group to another group; or

e) Impediment of procreation or of births within the group;

  Shall be punished with imprisonment for a period of 12 to 25 years.

2. Whosoever, publicly and directly, incites to genocide, shall be punished with imprisonment for a period of 2 to 8 years.

3. Whosoever consents to the practice of genocide shall be punished with imprisonment for a period of 1 to 5 years."

 Article 240 – Racial or religious discrimination[6]

" 1. Whosoever;

a) Establishes or constitutes an organization or develops organized propaganda activities, that incite to discrimination, to racial or religious hatred or violence, or encourages them, or;

b) Participates in the organization or the activities mentioned in the above paragraph, or assists them, including their financing;

Shall be punished with imprisonment for a period of 1 to 8 years.

2. Whosoever, in a public meeting, in a written matter intended for dissemination or by any other means of communication,

a) Provokes acts of violence towards a person or a group of persons because of their race, colour, ethnic or national origin or religion, or;

b) Defames or injures a person or a group of persons because of their race, colour, national or ethnic origin or religion, specifically denial of war crimes or crimes against peace and humanity; with the intention to incite to racial or religious discrimination or to encourage it,

Shall be punished with imprisonment for a period of 6 months to 5 years."

4. NON-DISCRIMINATION


LAW PROHIBITING DISCRIMINATION IN THE EXERCISE OF RIGHTS ON THE BASIS OF RACE, COLOUR, NATIONALITY OR ETHNIC ORIGIN, OF 28 AUGUST 1999[7]

Article 3 – Racial discrimination

"1. Racial discrimination is any kind of distinction, exclusion; restriction or preference on grounds of race;  colour;  descent;  national or ethnic origin, whose goal is; or that may result in the denial or restriction of the recognition, fruition or exercise of equity principles, rights, liberties or any other guarantee, or of economic, social and cultural rights (…)."

Article 4 – Discriminatory practices

"1. Actions or omissions, committed on grounds of a person's race, colour, nationality or ethnic origin, which violate the principle of equity, are considered discriminatory practices. (…).

2. It is forbidden to fire, sanction or harm by any other means, an employee, on the grounds of exercising his rights or for acting lawfully against a discriminatory practice."

Article 5 – The Commission for Equality and Against Racial Discrimination

"1. The application of the present law will be accompanied by a Commission for Equality and against Racial Discrimination that shall be established along with a governmental organ which shall be responsible for immigration and ethnic minorities.

2. The above Commission shall:

a) (…).

b) Collect all information related to discriminatory acts and to the application of relevant sanctions;

c) Recommend the adoption of legal, regulatory and administrative measures as it considers appropriate for the prevention of discriminatory practices based on grounds of race, colour, nationality or ethnic origin.

d) Promote study and research on the problems of racial discrimination;

e) Publish, by any available means, the cases of effective violation of the present law;

f) Prepare and publish an annual report on equity and racial discrimination in Portugal."

Article 13 – Interpretation and integration

"The precepts of the present law must be interpreted and integrated harmonically with the Universal Declaration of Human Rights, the Convention on the Protection of Human Rights and Fundamental Freedoms and the International Convention on the Elimination of All Forms of Racial Discrimination."

5.   EQUALITY BODIES / OMBUDSMAN


LAW ON THE OMBUDSMAN OF 9 APRIL 1991, AS AMENDED UP TO 10 OCTOBER 2005[8]

Article 1 - Duties

"1. In accordance with the Constitution, the Ombudsman is a State body elected by Parliament whose main duties shall be to defend and to promote the rights, freedoms, guarantees and legitimate interests of the citizens, ensuring, through informal means, that public authorities act fairly and in compliance with the law.

2. The Ombudsman shall have complete independence in the performance of his duties."

Article 2 - Scope of activity

"1. The activities of the Ombudsman shall focus namely on the activity of the services integrated in the central, regional and local public administration, the Armed Forces, the public institutes, the public companies or the companies whose capital is mostly public and the concessionaires operating public services or exploiting state property.

2. The scope of activity of the Ombudsman may also include relations between natural persons in a special power relationship, within the scope of protection of rights, freedoms and guarantees."

Article 3 - Right to complaint

"Citizens may refer complaints to the Ombudsman concerning actions or omissions by public authorities. The Ombudsman shall examine such complaints and address the public bodies concerned, making recommendations where appropriate so as to prevent and remedy injustices."

The Portuguese Ombudsman's role is defined in article 23 of the Constitution of Portugal (see above, in section on Constitutional provisions).




[2] Law no. 64/78. Original text in the Portuguese language available at http://www.igf.min-financas.pt/inflegal/bd_igf/bd_legis_geral/Leg_geral_...

[3] Original text in the Portuguese language available at http://www.unifr.ch/ddp1/derechopenal/legislacion/l_20080626_10.pdf

[4] As amended by Law n. 65/98, of 2 September 1998

[5] As amended by Law n. 65/98, of 2 September 1998

[6] As amended by Law n. 65/98, of 2 September 1998

[7]Law no. 134/99. Original text available at http://www.apav.pt/portal/pdf/prib_discrim_direitos.pdf 

[8] Source: Website of the Portugese Ombudsman. http://www.provedor-jus.pt/Ingles/OmbudsmanStatute.htm. (as amended by Law n.º 30/96, of 14 August 1996 and Law n.º 52-A/2005, of 10 October 2005